International Law

primary rules

dos and donts

secondary rules

establish a process for making primary rules

supports primary rules

rules about how to change primary rules

rules of recognition

identify secondary rules and develops processes for developing and reforming them

customary law

"general practice accepted as law"

widespread and consistent state practice

inductive/deductive approach to determining customary law

inductive: survey list, look at archives, specific observation to make a general conclusion deductive: preconceived ideas, general theory to specific conclusion

jus cogens

basic principles

general and unbroken law

peremptory norm

opinio juris

belief in legal obligation

persistent objector

objects to customary law"

I have never done that therefore I object"

positivism

opting in on a rule by rule basis, assessing the validity and how the law or norm came to be

voluntarism

states opt into international law through social context, states don't have control over rules that apply to them

jus gentilli

natural law

laws of morality or acts in which all society has some sort of rule regarding

realism

state is central actor/ groups as unit of analysis self-interested/ inherently competitive

Human nature viewed pessimistically

The system as anarchic Amoral realm

structural realism

international system is anarchic and that determines state behavior, states are rational

classical realism

struggle for power, human nature is the cause of conflict, balance of power

defensive realism

moderates strategy because more power through aggressive expansion creates a security dilemma, balance of power

offensive realism

states seek security through power maximization and security is scarcewant to be hegemon

liberalism

considers social interest and values of state in addition to the balance of power

The international system as anarchic

human nature tends toward cooperation

groups inherently independent

analysis of individuals and groups

ideational liberalism

considers intersection between social preferences varying collective good such as national unity and good governance-values and social identity determine state performance-foreign policy reflects domestic society

commercial liberalism

emphasis on role of globalization, trans-border economic transactions-trade allows states to enter into deeper cooperation-changes in market structure alter costs and benefits of trade-states seek to accumulate wealth and war risks that

republican liberalism

examines nature of domestic representation and considers which groups may use foreign policy to pursue their own domestic end-domestic institutions transform social identity and economic interest into state policy-who has power of preferences ... elities-elite preferences

constructivism

ideation vs. material"the meanings that we attach to objects matter more than the objects themselves"nonmaterial arguments for state power

state perception of anarchy shapes the culture of the international system

coordination versus cooperation

liberalism collaboration-working with someone with different interests-mutually beneficial-compromise-risky-hard so need institutions

vertical versus horizontal means of compliance

domestic law: vertical

international law: horizontal-equal enforcement of laws and all states are technically created equal

taboo

constructivist idea that some things are forbidden via social normsex. nuclear taboo

friendship, rivalry, enmity

cultures of anarchy f

riendship: perpetual peace

rivalry: pragmatic cooperation

enmity: competition

norms

beliefs about appropriate behaviorlogic of appropriateness takes into account social norms

logic of consequences versus logic of appropriateness

consequences: logic in which states evaluate the costs and benefits of a particular plan (all ideologies)

appropriateness: logic that takes into account social norms (constructivists)

sources of international law

\-judicial scholarship (opinio juris)

\-treaties/ international conventions

\-customary law

\- basic principles (jus cogens)

ergo omnes

an act, decision, or judgement that impacts all parties, not just those directly concerned

tout court

law is only binding on signatories

types of treaties

oral or written

bilateral versus multilateral

contract versus law

self executing (automatically becomes binding under terms of treaty itself) versus declaration of intent (after a certain number of states ratify)

treaty formation process

1. negotiations-those with credentials from state have full power to negotiate with other parties-no coercion
2. 2. signature-agreeing to wording
3. 3. ratification-express willingness to be legally bound by treaty
4. 4. reservations-express reservations that exclude or modify the legal effect of their regulations-must be made when state consents to be bound-not bound by items they see as objectionable-must be accepted by other states party to treaty-occasionally not permitted
5. 5. entry into force-self executing or self determined
6. 6. registration-copies sent to UN secretariat-prevents secret treaties

Vienna convention on law of treaties

every treaty in force is binding and must be performed by the parties in good faithinternal law provisions are not justification to fail to execute a treaty

rebus sic stantibus

legal doctrine allowing for a contract or treaty to become inapplicable because of a fundamental change in circumstance

pacta sunt servanda

do not break treaties

treaties have to be upheld unless very specific conditions

material breach

one party entitled by another to suspend/terminate

cannot be multilateral treaty"a violation of a treaty provision essential to accomplishment of the object and purpose of the treaty"

impossibility of performance

if an object indispensable for execution disappears or is destroyed

self executing treaty

automatically becomes binding under terms laid out in treaty itself

sole executive agreements

an agreement between the heads of government of two or more nations that has not been ratified by the legislature as treaties are ratifiedconsidered politically binding to distinguish them from treaties that are legally binding

US constitution and treaties

most treaties are executive agreements

congressional executive agreements must have approval by both houses of congress

sole executive: president exerting power alone

constitution overrules international rule

US domestic hierarchy of laws

1\.US constitution

2\. International agreements and treaties are equal with federal statutes

conducts: last in time prevails

monist vs. dualist

monist: international and domestic law intersect

dualist: international and domestic law is different so treaties don't have constitutional power unless they get domestic legislation

constituent treaties

multilateral agreement that sets up an international organization

memorandum of understanding (MOU)

a document that describes the broad outlines of an agreement that two or more parties have reachedcommunicate mutually accepted expectations of all the parties involved in a negotiationnot legally binding

Montevideo convention (state)

a state must possess a permanent population, a defined territory, a government, the capacity to conduct international relations

de facto recognition

actual and effectual recognition of a government without formal recognition by law; recognizing a government has control of an area, weaker than De Jure.

de jure recognition

gives government formal, legal recognition, UN membership

constitutive versus declaratory view of recognition

constitute: recognition of an entity as a state is not automatic-only a state when it is recognized as such and other states have considerable discretion to recognize or not

declaratory: a state exists without total recognition which is merely an acknowledgment of an existing situation

secession

separates itself

succession

remakes itself

uti posidetis juris

newly formed sovereign states should retain the internal borders that their preceding dependent area had before their independence

self determination

the right of the people to choose their own form of government and legal destiny

terra nullis

land doesn't belong to anyone

sovereignty

responsibility: take care of peopletraditional sovereignty: within borders

occupation

exclusive occupation for an extended period

historical results in sovereignty claims right to occupy and administer based

conquest

not legal under UN charter

cession

deeding via international agreement of territory from one state to another

prescription

is sovereignty transfer of a territory by the open encroachment by the new sovereign upon the territory for a prolonged period of time, acting as the sovereign, without protest or other contest by the original sovereign.

accretion

Terriotrial increases by natural processes, like a new formation of land within territorial watersex. shifting river bed of rio grande

belligerent versus humanitarian occupation

belligerent: no right to sovereignty

\-occupiers can only use resources of territory that are necessary to administer state and meet needs of population

\-maintain order and security

humanitarian: international organization or state

\-no right or claim to sovereignty

\-in times of crisis

UNCLOS

United Nations Convention on the law of the sea

territorial/contiguous zones/exclusive economic zones/high sea zones

\-12mn from baseline is under absolute sovereignty

\-24nm from baseline is limited jurisdiction/contiguous

\-200nm from baseline is limited jurisdiction/exclusive economic zones

res communis

high seasterritory that no one owns, not legal to assert any authority or jurisdiction over

innocent passage

"as it is not prejudicial to peace, good order, or security of coastal state"

baseline

the line from which the extent of the territorial sea is measured

mare clausum

the closed sea, under sovereignty of a power, restricted in terms of use by other states

mare liberum

seas open to all nations

cannon shot rule

the extent to which a nation could control its coastal waters was largely based on the reach of cannons off of shore

transit passage

allows a vessel or aircraft the freedom of navigation or overflight solely for the purpose of continuous and expeditious transit of a strait between one part of the high seas or exclusive economic zone to another

military objective

an object which by its nature, location, purpose, or use makes an effective contribution to the military action or whose partial or total destruction, capture, or neutralization offers, in the circumstances ruling at the same time, a definite military advantage

combatant versus noncombatant

combatant: members of armed forces

\-hierarchical command structure

\-distinctive sign

\-carries arms openly

\-conducts operations in accordance with customs and laws of war

noncombatant:-medical personnel

\-chaplains

\-wounded

\-shipwrecked

\-civilians

discrimination

\-legitimate targets in war

\-civilians not appropriate targets of war

\-must distinguish between civilian and non-civilians in targeting

proportionality

idea of countermeasures limits:

1\. proportional to harm suffered

2\. do not violate laws of war in countermeasure

\-respond in a similar manner

\-responsibility to protect

\-international humanitarian law

ad bellum

"before war" when and why force may be used

in bello

"during war" how force may be used, what sorts of persons and structures can be targeted

unlawful combatants

illegal combatants: militia, lack of central command, legal/moral equality of combatants

\-cannot be imprisoned just for fighting

additional protocol 1

1977 amendment protocol to the Geneva Conventions relating to the protection of victims of international conflicts, extending to "armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes" are to be considered international conflicts

geneva conventions

from core of international humanitarian law, regulates the conduct of armed conflict and seeks to limit its effects

hague conventions

one of first international conferences on peace

\-banned asphyxiating gases and projectiles

\-prohibited attack or bombardment of towns, villages, etc. which are not defended

\-pillaging prohibited

\-occupying power should not use economic means to devastate regions unless necessary

UN Charter on the use of force

all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any stateforce is still a legal response to aggressionthe security council should determine if and how force is used to control a states' act of aggressiondoes not define force or aggression

genocide

the deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying that nation or group

aggression

the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state

countermeasures

measures taken by a state in response to the internationally wrongful act of another State and aimed at inducing the latter state to comply with its legal obligations

preemption

Is legal, defined by the caroline standard. legal defense-overwhelming threat-imminent-leaving no choice but to act now to preserve oneself-requires significant intelligence

prevention

ilegal the US invading Iraq.

Caroline standard

boundaries of legitimate self defense preemptive or preventive attack

\-overwhelming threat

\-imminent

\-leaving no choice but to act now to preserve oneself

\-requires significant intelligence

international governmental organizations

involves two or more sovereign states established by a treaty is permanent possesses autonomous decision making capability

nongovernmental organization

private, voluntary organizations made up of individuals or associationsmay be funded privately or partial government support but cannot be entirely government support

immunity

extended to diplomatic officials and actors working on behalf of their state, but the level of protection is staggered

do no harm

states have the responsibility to prevent harm caused as a result of an active disposition on/over their territory

due dilligence

by which such breaches are evaluated, must take all measures to prevent harm

polluter pays

polluter should in principle bear the costs of pollution with due regard to public interest and without distorting trade and investments

transboundary harm

harm caused in the territory of or in other places under the jurisdiction or control of a state other than the state of origin, whether or no the states concerned share a common border

Trail Smelter case

trail smelter tribunal with Canada and US

\-under the principles of international law, no state has the right to use territory to allow injury to a neighboring territory property or persons therein

stockholm/rio framework

prevention of environmental harm precautionary approach polluter pays

sustainable development

Paris agreement

legally binding international treaty on climate change adopted by 196 parties at COP21 in Paris in 2015 and entered into force in 2016

goal is to limit global warming to well below 2 degrees celsius compared to preindustrial levels

tragedy of commons

situation in which people acting individually and in their own interest use up commonly available but limited resources, creating disaster for the entire community if everyone acts, everyone benefits, even those who didn't take action would benefit if they did enough to restrict

Kyoto Protocol

operationalizes the United Nations framework convention on climate change by committing industrialized countries and economies in transition to limit and reduce greenhouse gasses/emissions in accordance with agreed individual targets. US signed but did not ratify

CITIES treaty

an international agreement designed to ensure that international trade in animals and plants does not threaten their survival in the wild

humanitarian intervention

use of force by one state or group of states against another to protect civilians facing violence of egregious human rights violations

\-without consent of the state

\-builds into R2P emerging norm in international community

\-prevent, protect, rebuild